I briefly discuss the primary advantage of Mediation over litigation in relation to these disputes in a wider article I am writing for Trusts & Trustees (OUP) – ‘Mediating Probate Trust & Tax Disputes –Challenges & Tools’, which I am on schedule to complete in August. The following is an extract:
‘Where terms of an Islamic family trust were drafted following consultation with Sharia Scholars who pronounced upon conformity with Islamic law, and the deed contains a valid and applicable English governing law clause (‘GLC’), the GLC Engages:
(i)         An ocean on potentially applicable equitable principles developed under English Law, except to the extent that any right, duty or power has been modified or lawfully excluded under the express terms of the trust, as drafted.
(ii)        Fiduciary principles under Islamic law.
Depending upon the knowledge and skill of the draftsman, this may have resulted in the creation of a lacunae between:
(a)        an applicable principle of equity under English law; and
(b)        an unstated ethical principle under Islamic law.
Islamic Law is not a unified system of law. Furthermore, the doctrinal foundations of fiduciary theory in Islamic law suffer from a paucity of analysis. As Professor Mohammad Fadel concludes in chapter 28 of the Oxford Handbook of Fiduciary Law (2019) (‘Fiduciary principles in classical Islamic law systems’), at page 543:
‘[There is] a vast body of rules in classical Islamic law that were reflective of fiduciary principles. … [An] Islamic fiduciary, above all, is supposed to be motivated by a genuine sense of moral duty and is always aware that his or her discharge of that duty is subject to divine supervision. If fiduciary duties arise as a solution to incomplete contracting, it is a unique kind of contract insofar as the fiduciary is prevented from securing his own interests. It is rather an undertaking to do one’s best in furtherance of the interests of another. This altruistic dimension of fiduciary duties in Islamic law is ultimately its most crucial feature, distinguishing it from other legal relationships.’
 
Therefore if the family trust dispute proceeds to litigation, a court which has jurisdiction, becomes in effect a final arbiter of the meaning and enforcement of the rights of the beneficiaries, and the duties and powers of the trustee (and of any Protector) under the terms of the Islamic Trust deed. The court will make its decision based upon the expert evidence presented about Islamic Law. Since its decision is likely to depend upon the eminence of the expert whose evidence the court prefers, the outcome of the litigation:
(i)         is uncertain; and
(ii)        may not conform with the Islamic ethics of the deceased settlor [‘S’].
Through Mediation, the participants can instead discuss and explore S’s ethics, and agree bespoke ‘ethical’ terms of settlement in a form which a court has no power to impose under English Law.’